Pa. murder charge dismissed

judge critical of 19-year wait

March 22, 2000|By DON AINES

CHAMBERSBURG, Pa. - A Court of Common Pleas judge on Monday dismissed a criminal homicide charge against a Chambersburg man, saying the state failed to justify waiting 19 years before filing the charge.

Michael Wayne McCormick Jr., 51, was charged by Pennsylvania State Police on Feb. 6, 1998, with the March 1976 shooting death of Alan Bennett Cosey, 23, in Cosey's Waynesboro, Pa., apartment.

Cosey was shot through the heart with his own blackpowder revolver, and his death was originally ruled a suicide. The case lay dormant for 18 years before Pennsylvania State Police reopened the investigation in 1997.

Assistant Public Defender Nancy Meyers on Tuesday described McCormick's reaction upon hearing the charge was dismissed. "Initially, when I told him, just a moment of disbelief," she said.

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She said she had instructed him not to answer any questions from reporters because the case is still active while the prosecution decides whether to appeal to the Pennsylvania Superior Court.

"I disagree with the court's reasons and feel compelled to appeal," Franklin County District Attorney John F. Nelson said Tuesday.

In the ruling, Judge Richard J. Walsh cited Commonwealth vs. Scher, a similar case in which Dr. Stephen Scher was charged in 1996 with the 1976 shooting death of his best friend. The man's death was ruled accidental and Scher later married his widow.

Years later the prosecution said it developed new evidence about an alleged affair between Scher and the man's wife and had a new autopsy performed.

The Superior Court ruled, however, that the new evidence was nothing investigators could not have discovered through normal investigative procedures in 1976 and overturned his conviction.

"The case was distinguishable from the Scher case in that we had new evidence ... his statements to police," Nelson said. Police alleged McCormick told them he had pulled the trigger at the urging of Cosey.

Meyers said McCormick was interviewed by state police for 11 hours over two days without a lawyer present. She said police have no signed statement or tape recordings of the interviews.

"They're saying his alleged confession is new, but they waited 19 years to interview him again," Meyers said. During that time McCormick was always available to answer questions, she said.

"Very, very disappointed and angry," was the reaction of Vicki Lemmon, 44, of Chambersburg, Cosey's widow. She helped get the case reopened when she confided her suspicions to her psychiatrist, Dr. Harvey Shapiro.

In his opinion Walsh noted evidence from 1979 indicated the hammer of the pistol was resting on an undischarged round.

While that evidence would weigh in favor of homicide rather than suicide, Walsh wrote that the passage of time prejudiced the case against McCormick because police could not "effectively examine and cross-examine all those individuals who may have handled the revolver because they are either deceased or not known."

There was also "an insufficient amount" of gunpowder residue on Cosey's hand to support a finding that he shot himself, Walsh noted.

The passage of time, however, makes it difficult for McCormick to challenge the evidence because it is unknown who collected the evidence, or how and when it was collected.

At a Dec. 9 hearing on the motion to suppress, retired Waynesboro police chief Jude Walsh and other witnesses said they were unable to recall specifics about their interview of McCormick, which also prejudices the case against him, Walsh wrote.

Cosey's mental state was brought into question at the hearing. McCormick's ex-wife testified Cosey told her he wanted to commit suicide because he owed money to the IRS. Walsh said the defense would not be able to examine that theory because his tax records have been destroyed.

McCormick told police he found Cosey's body. He said the two had been out drinking on March 28 but parted company during the night, according to court records.

Cosey and Lemmon were separated at the time of his death, but police returned the pistol to her after his death was ruled a suicide. She said she gave the gun to state police when the case was reopened.